FOIL

Freedom of Information Law request
by The New Franklin Register
to Department of Environmental Conservation
for the draft regulations resulting from the GEIS on Oil, Gas and Solution Mining Regulatory Program (1992)

Backstory

While following the developments of gas drilling in Pennsylvania, The New Franklin Register found mention of a review of the PA DEP oil and gas regulatory program. In tracking-down this lead, we found that there had been a similar review of the NYS DEC program by IOGCC and US EPA in 1994 — available at http://strongerinc.org/content/new-york . Also available on their website was a sixteen page history of the program, which revealed that, unlike several states, New York undertook no follow-up review in the intervening 15 years. (Pennsylvania had two follow-up reviews in that time.) After a presentation in 2004 to DEC by STRONGER Inc. (the subsidiary of IOGCC that took over the review process), DEC agreed to a follow-up review in 2005, which was postponed to 2006 and then cancelled (James Erb, consultant to STRONGER Board of Directors, personal communication, 5/6/11). We were referred to Director Field of DMN for an explanation of this cancellation, but received no response.

As a consolation, DEC agreed to self-evaluate how well they had responded to the 37 recommendations of the 1994 review. This Q&A is not available on the STRONGER web site, but we were sent a copy. In addition to whether the IOGCC/EPA recommendations were implemented or not, in some cases DEC provided comments on their efforts. For the primary recommendation:

Recommendation I.1. DMN should establish and adhere to a schedule for completing its rule revisions as soon as possible, and incorporate the relevant recommendations contained throughout this report into the rulemaking. (1990 Guidelines sections 3.1 and 5.1.)

Has this recommendation been implemented? Partially

Comments: Mineral Resources prepared regulations and held hearings in the fall of 1997 to collect public comments. These regulations were not promulgated; however, Mineral Resources has implemented many regulatory changes through other means, including permit conditions and guidance documents.

With this revelation, The New Franklin Register began our attempt to obtain a copy of those draft regulations.

Unlike the GEIS, there is no record on the DEC website of the IOGCC/EPA review, the draft regulations, or the STRONGER questionnaire. This despite that the DEC is still a member of the Interstate Oil and Gas Compact Commission, as is listed on their website http://www.dec.ny.gov/about/805.html , with the Director of DMN, Bradley J. Field, the official voting representative.

FOIL Request for Draft GEIS Regulations

Chronology

6/11 The New Franklin Register e-mailed a FOIL request to Ms. Earl at DEC (Records Access <foil@gw.dec.state.ny.us>) for the draft GEIS regulations.

6/11 Division of Mineral Resources (DMN) notified us that, due to their work completing the revised draft SGEIS, the usual 10 day response would instead be two months.

8/11 Days before the two month deadline, DMN denies request because this document is “an internal draft” and as “inter-agency or intra-agency materials” may be denied.

8/11 Within the 30 day deadline, the NFR sends a register letter to the FOIL Appeals Officer in the Office of General Council, DEC appealing our denial.

9/11 An Associate Counsel in DEC office of General Counsel investigates and explains that DMN claims that they could find no copy of the 1997 draft regs, but they did find a copy of a 2000 edit. Because of the edits, DMN claims that it is “an internal draft”.

9/11 AC finds in the Environmental Notice Bulletin announcement of public workshops held by DMN on the draft regs, thereby confirming that 1997 draft regs were a public document.

9/11 AC is unable to locate even one copy of those draft regs anywhere in New York government system.

10/11 AC rules that DMN must release the 2000 edited version, but may redact the text added in 2000.

11/11 After reading through the document, NFR decides not to make a judicial appeal for an unredacted copy. Redacted text is mostly punctuations, words, and section headings.

Oil & Gas Pollution in New York State

Part II

The Short Reports:

In the last 30 years or so, there have been dozens of reports of oil, gas, or brine polluting the water and air in New York State. But the Division of Mineral Resources (DMN) has failed to find the oil and gas industry responsible for a single incident of subsurface pollution, except for one malfunction and one operator error, both during drilling. Can the exploration and production of petroleum in New York be that immaculate?

For virtually all of these reported incidents, the determinations by DMN are poorly documented, and therefore their work cannot be methodically reviewed. The exception is gas pollution of the Short family homestead, hamlet of Levant, Town of Poland, Chautauqua County. During the 1980s, investigations of this pollution produced several reports.

In the early fall of 1983, the Shorts noticed changes in their well water, such as “cloudiness, bubbling and high pressure.” On the morning of November 1st, the wood-plank cover of their underground well house blew apart. The responding fire department notified the county fire coordinator, who notified the DEC. Staff was on the scene by the afternoon of the 3rd.

Examination of the property found gas coming out of the cellar’s dirt floor and the lawn. Within two days, the local distributer of natural gas, National Fuel Gas, determined that this gas chemistry did not match theirs.

DMN began their investigation by reviewing the paperwork of several gas wells in the hills above. [See map below.] Finding it in order, they looked around the well heads. One small leak was found, which was venting into the air. This took a week.

In the map above, polluted water wells (pushpins) are clustered in the valley, whereas gas wells are distributed throughout the hills above. Click on link below map to see details of water and gas wells.

Having “exhausted its resources,” the DMN wrote to Mr. Short on November 23rd that “the natural gas being released from the ground is either a naturally occurring phenomenon (swamp gas due to surrounding swamps, or shallow gas – a naturally occurring natural gas formation in Chautauqua County) or a product of some other physical means outside the experience of this office.” (They meant “marsh,” not “swamp.”) DMN seems to be a division of few resources and little experience.

Like most DMN investigations, this one might have ended there except for exceptional coincidences. Mr. Short was wholly unsatisfied by their response and complained loud and long at many venues that winter. Eventually, it became clear that more than a dozen homes and businesses in Levant were also polluted. Levant is on the edge of Jamestown, and that city was concerned about pollution of their aquifers, one of which is in the Town of Poland. Chautauqua County had a long-running dispute with DMN over gas pollution. Mr. Short hired a hydrologist to investigate his pollution. And the NYS Attorney General became involved.

In the spring of 1984, DMN reopened their investigation. New work included sampling gas from Mr. Short’s property and nearby gas wells, a magnetic survey for buried abandoned wells, and listening at well heads for the sound of leaks.

In May, the DEC report confirmed the conclusion of their initial letter: “The ebullient gas is more marsh-like in chemical composition than production gas,” even though the gas contained minor amounts of ethane and propane, which are found in petroleum gas but not in marsh gas.

And that “other than minor casing head leaks at the surface, the well-bores have maintained their integrity.” Even though contact microphones might pick up leaks through the upper hundreds of feet of cased well-bore, but not leaks though the lower thousands of feet of uncased well-bore.

To explain the sudden appearance of gas at the Shorts’, DEC wrote: “Three weeks prior [to the explosion] … New York experienced the largest earthquake in 40 years…the earthquake may have opened fissures permitting the contained gas to escape.” Never mind that the epicenter of the Blue Mountain Lake earthquake was in the Adirondacks over 270 miles away.

In July, the Shorts’ consultant Dr. Harrison concluded that “the gas causing the problem in the Levant area could not be swamp gas,” and that “it is extremely unlikely that a recent earthquake caused a release of Devonian shale gas or Medina gas.” Instead the pollution was “caused by activities associated with gas well drilling and production,” specifically because these wells were not cased in cement for most of their length, so gas built up in the shaft and leaked into the bedrock.

With the gas wells in the hills above Levant, the downward flow of ground water could carry the gas from their uncased lengths to the sands and gravels beneath Levant, where it could then rise toward the surface [See cross section below].

Cross Section:Slice through the earth above the hamlet shows groundwater flowing from the recharge area on the hill to discharge area in the valley. This flow can carry shale gas from uncased gas wells 4,000’ deep to Short’s water well 120’ deep. While Weiler 1 is cased down to 652’, other gas wells in the area are cased down to only about 300’.

That August, DMN ordered the two operators, Bounty Oil & Gas and Union Drilling, to vent to the atmosphere the space between the pipe carrying the gas up from depths and the wall of the well-bore.

Dr. Harrison proposed to Assistant Attorney General Moore a joint investigation to resolve their disagreements. It began in February of 1985 with contributions from DMN staff, Peter Skinner of the Attorney General’s office, Henry Baily of the NYS Geological Survey, and Harrison himself.

Roger Waller from US Geological Survey proposed using carbon isotopic dating. Samples collected by Mr. Skinner were analyzed by Krueger Enterprise of Cambridge MA. Results showed that the gas was too old to date by this method – over 40,000 years old. Therefore, it could not be marsh gas.

Dr. Harrison built devices to measure the volume of gas vented from water wells and installed them in four homes. The volume of gas in the Shorts’ well decreased after the wells were vented, suggesting that one or more of those wells were the source of the gas.

Despite the accumulated evidence, in March 1986, DMN concluded that “Conflicting trends in a deficient collection of data have not produced conclusive evidence to pinpoint the source of the gas” and that “it may ultimately prove impossible to pinpoint the source of the gas.”

The DMN investigated for two more years, with further analyses of gas and water and measurements of the depths of gas-bearing layers (mud-logging) in a new gas well. With the release of the final report in May 1989, Director Sovas of the DMN said, “All the work we have done suggests that gas exists in the area, but I can’t say one thing is causing it or not.”

While DMN conceded that the polluting gas is petroleum, it did not confirm that gas came from any gas well, let alone identify a particular well. What is more, DMN continued to promote an Adirondack earthquake as the cause of the onset of pollution rather than the drilling of local gas wells.

The tenacity of Mr. Short, the scientist that he hired, and government officials at all levels pressured DMN into producing hundreds of pages of reports. Yet in over five years of investigations, DMN failed to identify the source of pollution.

Given the mountain of evidence concerning the shale gas pollution of the Levant aquifer, if not there, where and when will the DMN ever hold the oil and gas industry accountable?

NOTE: In May of 1984, Tim and Debbie Short along with their three sons moved out of their home and into a trailer in Ellery, 13 miles away. Their polluted house remained unsold for many years, gradually decaying. After spending several thousand dollars on a consultant and a lawyer, the Shorts filed a lawsuit in 1986, but ultimately did not take their suit to trial.

Oil & Gas Pollution in New York State

Part I

Current Regulation:

Eventually the Department of Environmental Conservation (DEC) will release the final Supplemental GEIS, which will include guidelines for the safe horizontal drilling and fracturing of black shales. If and when drilling and fracking come to Franklin, will the DEC assure that it is done safely? If past is prologue, then the DEC’s record should predict their future success or failure.

In New York State, existing regulations for the DEC’s Division of Mineral Resources (DMN) are antiquated and inadequate, most having been written in 1972.

In 1992, the Generic Environmental Impact Statement (GEIS) on the Oil, Gas, and Solution Mining Regulatory Program included the first set of guidelines for safe drilling. The DMN did not see the need for such guidelines, and only began this study after being compelled to by the passage of State Environmental Quality Review Act. Even with the study completed, the DMN under Director Sovas repeatedly failed to codify these guidelines through regulations. Instead of uniform and transparent statewide regulations, DMN uses a changing list of conditions attached to each individual permit to drill, and available only at regional offices or through a Freedom of Information Law (FOIL) request. One draft of the GEIS regulations was obtained by this newspaper through FOIL, but only after an appeal, as described in Volume V, Number 3.

What of the claim that NYS already has the best regulations? Earlier this year, the International Energy Agency published a study Golden Rules for a Golden Age of Gas. In the Annex [appendix] of Regulation and Best Practice are examples of regulations from Pennsylvania, Colorado, EPA, Bureau of Land Management, Alberta (Canada), and Queensland (Australia) – but not a single regulation from New York.

The DEC planned to permit this new combination of horizontal drilling and high-volume fracturing without a SGEIS until compelled to by Governor Paterson. (In May of 2008, the Department claimed “Adequate state regulatory programs [are] already in place.”) The writing of the guidelines has overtaxed the DEC for more than four years, and even today there is much dissatisfaction with the quality and completeness of their work. Codifying these guidelines and enforcing the resulting regulations will be a larger burden still.

The GEIS (1992) was long overdue. Contrary to claims that there has been no pollution of water from the estimated 75,000 oil, gas, and brine wells drilled in New York, there were numerous such reports. So many so that in 1981 and 1986, the DMN had to strengthen the requirements for the casing of these wells — the latter under the direction of the Commissioner of the DEC.

Regulations by the DMN for drilling of oil, gas, and brine have been a day late and a dollar short, with change coming only after pressure from outside.

The Pollution Record

It is unrealistic to expect perfection from any regulatory process. To make an informed decision on whether drilling is regulated enough, we need to know the record. Exactly how often does exploration and production (E&P) pollute aquifers? We do not know because the DMN withholds this information.

Since 1985, DEC has compiled reports of all sorts of spills. Among these hundreds of thousands of spills, there are hundreds of oil, gas, and brine spills, but the Division of Mineral Resources does not list them separately. In 2009, a search by Toxics Targeting found 270 such reports, and in 2011, 72 more. The map below shows the more significant of these pollutions.

Map above shows oil, gas, and brine pollution of water and air in New York State, 1983 to 2011. Click on link below map to see details of reported pollution.

Unlike DEC spill reports, DMN non-routine incident reports are unavailable even through a FOIL request. Also, in the three western counties where most of the drilling has occured, complaints of polluted water wells are reported to county departments of health and these do not make it into state records. Included on the map are some incidents from files of Chautauqua Department of Health from the 1980s and 2000s.

The DMN Annual Reports contain no listings of spills, non-routine incidents, or county reports. What is more, the DMN maintains numerous searchable databases related to drilling, but none on spills and non-routine incidents, despite the fact that these risk-based data management systems were funded by DOE through the Ground Water Protection Council expressly to protect and conserve ground water resources.

The Record of Enforcement

The DMN provides even less information on their enforcement record. Typically, spill records are closed before enforcement actions are completed. County departments of health refer incidents of pollution to the DMN for enforcement. But the enforcement records of DMN non-routine incidents are also unavailable.

Fines imposed by the DMN could tell something about pollution incidents and enforcement. However, DMN Annual Reports cite the total of fines but list neither the companies fined nor their infractions nor the sites effected. (And the fines themselves are minor: typically a few tens of thousands of dollars each year, on an industry that grosses hundreds of millions of dollars annually.) The DMN does everything within its power to shield the oil and gas industry from scrutiny.

Some complaints of polluted water wells became so publicized that the DEC could not ignore them. In one such case, back in 1983, the Short family’s sump exploded in Levant, Town of Poland, Chautauqua County. During the preceding two years, a dozen gas wells were drilled in the hills above, including a few less than a mile away. A consulting hydrologist concluded “the natural gas in [sic] at the Short’s property … is being caused by activities associated with gas well drilling and production.” The DEC wrote three reports on this polluted aquifer, which affected fourteen other families. In the first, it proposed that the source of the pollution was land-fill gas. Later, analyses identified the gas as from shales. Also, the DEC suggested that the pollution was not caused by work at neighboring gas wells, but from the Blue Mountain earthquake in the Adirondacks, over 270 miles away. Saying that it was unable to “pin-point the source of the problem,” the DEC took no action.

Twenty years later, little had changed. In 2007, the Feruggia family’s well in Kiantone, Chautauqua County, began pumping water that tasted salty, stained fixtures brown, and intermittently smelled of hydrogen sulfide. Two years earlier, the Eckman 7-468 gas well was drilled 330 feet uphill of their home. Analyses of their drinking water showed high concentrations of TDS [total dissolved solids], sodium, chlorine and barium. Chautauqua County Department of Health identified the cause of this pollution as gas production, but a subsequent report by the DEC disagreed. Geologists at US Geological Survey and SUNY Fredonia Department for Geosciences reviewed the two reports, and both agreed with CCDoH that this required further investigation. The DEC took no action.

These two are the best documented, but they are not isolated incidents. A review of reports on polluted water wells show repeated attempts to disregard or explain away pollution. In the final report on Levant, the DMN admits that “some cases [are] attributable to gas wells.” But it does not list any of these industrial pollutions. while in the same report listing several naturally occurring pollutions.

A case of industrial pollution that the DMN cannot deny was in 1996. In the Town of Freedom, Cattaraugus County, the water wells of the Lewis family and others were polluted by gas from the K.C. Powell et al 1 oil well — over a mile away. The several plaintiffs were awarded damages by the NY Supreme Court, County of Cattaraugus.

It should be clear that current oil and gas regulation in New York State is insufficient, that pollution is significant, and that enforcement is deficient.

Can horizontal drilling and fracking be safely regulated in New York? Given its flawed oversight of the relatively simple vertical drilling, this is something that the Division of Mineral Resources has yet to demonstrate.